Chapter 4913: PUBLIC UTILITIES COMMISSION - ENFORCEMENT OF UNDERGROUND-UTILITY-DAMAGE-PREVENTION LAW

4913.01 [Effective 3/23/2015] Definitions.

As used in this chapter:

(A) "Aggrieved person" means a person with duties and obligations under sections 153.64 , 3781.27 , and 3781.28 to 3781.32 of the Revised Code and divisions (A) and (B) of section 3781.26 of the Revised Code and who is directly involved with or impacted by the alleged compliance failure, as identified in the request for inquiry, of another person with duties and obligations under sections 153.64 , 3781.27 , and 3781.28 to 3781.32 of the Revised Code and divisions (A) and (B) of section 3781.26 of the Revised Code.

(B) "Compliance failure" means a failure to comply with any provision of sections 153.64 , 3781.27 , and 3781.28 to 3781.32 of the Revised Code and divisions (A) and (B) of section 3781.26 of the Revised Code.

(C) "Designer," "developer," "excavation," "excavator," "one-call notification system," "person," "protection service," "underground utility facility", and "utility" have the same meanings as in section 3781.25 of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.03 [Effective 3/23/2015] Safety Registration.

(A) Each utility, excavator, developer, and designer who participates in the one-call notification system shall register with the public utilities commission and pay a safety registration not to exceed fifty dollars annually, which the commission may lower if the commission determines lowering the registration to be necessary. The commission shall administer and oversee the registration process. Failure to register shall result in a fine of not more than two thousand five hundred dollars.

(B) The commission shall deposit all safety registrations and fines collected under this section in the underground facilities protection administrative fund created under section 4913.30 of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.05 [Effective 3/23/2015] Request for imposition of fine or penalty.

(A) Beginning January 1, 2016, an aggrieved person may request an inquiry with the staff of the public utilities commission seeking the imposition, in accordance with this chapter, of a fine or penalty on the person responsible for the alleged compliance failure described in division (A) of section 4913.01 of the Revised Code. The person shall make the request not later than ninety days after discovering the alleged compliance failure. The request shall not, by itself, cause the creation of a formal proceeding at the commission.

(B) A request made under this section shall state, at a minimum and with particularity, the name of the person responsible for the alleged compliance failure, the date of the compliance failure, the nature of the compliance failure, the location of the compliance failure, and any other information that the requestor considers relevant.

(C) The staff shall, not later than ten business days after receiving a request under this section, notify the person responsible for the alleged compliance failure that the request was made.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.07 [Effective 3/23/2015] Response to request for inquiry.

If a request for an inquiry is made under section 4913.05 of the Revised Code, the person responsible for the alleged compliance failure may, not later than thirty days after being notified under that section, respond to the request, providing any information that the person considers relevant to the request. The response may include an admission of the compliance failure.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.09 [Effective 3/23/2015] Conduct of inquiry.

(A) The staff of the public utilities commission shall conduct an inquiry upon receiving a request made under section 4913.05 of the Revised Code. The inquiry shall be limited to whether there was a compliance failure.

(B) During an inquiry conducted under this section, the staff shall examine relevant facts regarding the alleged compliance failure and may request records verification, informal meetings, teleconferences, photo documentation, and any other documentation or information relevant to the inquiry.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.13 [Effective 3/23/2015] Reports of inquiries.

The staff of the public utilities commission shall make a report of each inquiry conducted under section 4913.09 of the Revised Code available to the underground technical committee, created under section 3781.34 of the Revised Code. The report shall contain any admission made under section 4913.07 of the Revised Code by the person who is the subject of the inquiry. This report shall not contain a recommendation as to the imposition of a fine or penalty or as to whether no enforcement action should be taken.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.15 [Effective 3/23/2015] Review of reports by underground technical committee.

(A) The underground technical committee shall review every report of the staff of the public utilities commission made available under section 4913.13 of the Revised Code or submitted under section 4913.16 of the Revised Code.

(B) Not later than ninety days after the committee obtains the staff's report under section 4913.13 of the Revised Code, the committee shall do any of the following:

(1) Make a written recommendation to the commission as to the imposition of a fine, a penalty, or a combination of fines and penalties, in accordance with section 4913.151 of the Revised Code;

(2) Determine that no enforcement action should be taken and notify the commission in writing of the determination;

(3) Request a hearing under section 4913.19 of the Revised Code.

(C) There shall be a majority vote of the full committee, with at least one of the commercial-excavator stakeholders voting with the majority, for the committee to do any of the following:

(1) Recommend a fine, penalty, or a combination of fines and penalties under this section or section 4913.16 of the Revised Code;

(2) Determine, under this section or section 4913.16 of the Revised Code, that no enforcement action should be taken;

(3) Request a hearing under section 4913.19 of the Revised Code.

If the committee fails to achieve the required majority for any action described in division (C) of this section, it shall notify the commission.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.151 [Effective 3/23/2015] Determinatio of fine or penalty recommendation.

In determining a fine or penalty recommendation as required under section 4913.15 or 4913.16 of the Revised Code:

(A) If the compliance failure is the first for the person responsible, the underground technical committee may recommend a penalty of a training requirement, an education requirement, or another nonmonetary penalty, or may recommend a fine not exceeding two thousand five hundred dollars, or may recommend a combination of this fine and these penalties.

(B) If the compliance failure is a subsequent compliance failure for the person responsible, the committee may recommend a penalty of a training requirement, an education requirement, or another nonmonetary penalty, or may recommend a fine not exceeding five thousand dollars, or may recommend a combination of this fine and these penalties.

(C) Any penalty recommended under this section shall be appropriately related to enforcement of the provisions enumerated in division (A) of section 4905.041 of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.152 [Effective 3/23/2015] Communications with knowledgeable persons.

The underground technical committee may communicate with persons who have knowledge or information concerning the alleged compliance failure as part of the committee's review under section 4913.15 of the Revised Code and to assist the committee in making recommendations under that section and section 4913.16 of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.16 [Effective 3/23/2015] Failure to achieve majority or act.

(A)

(1) If the underground technical committee votes during the ninety-day time period as required under division (B) of section 4913.15 of the Revised Code but fails to achieve the required majority as described in division (C) of that section, no enforcement action shall be taken.

(2) If the committee, during the ninety-day time period, fails to vote on any action as required under division (B) of section 4913.15 of the Revised Code, the staff of the public utilities commission shall make a recommendation as to a fine or penalty or no enforcement. The staff shall cause the initial report made available under section 4913.13 of the Revised Code to be amended to add the recommendation, and shall submit the amended report to the committee.

(B) Not later than thirty days after the committee receives an amended report under division (A)(2) of this section, the committee shall do any of the following, subject to division (C) of section 4913.15 of the Revised Code:

(1) Make a written recommendation to the commission as to the imposition of a fine, penalty, or a combination of fines and penalties in accordance with section 4913.151 of the Revised Code;

(2) Determine that no enforcement action should be taken and notify the commission in writing of the determination;

(3) Request a hearing under section 4913.19 of the Revised Code.

(C)

(1) If the committee votes during the thirty-day time period as required under division (B) of this section but fails to achieve the required majority as described in division (C) of section 4913.15 of the Revised Code, no enforcement action shall be taken.

(2) If the committee fails to vote on any action as required under division (B) of this section, the commission shall impose a fine or penalty consistent with section 4913.151 of the Revised Code or take no enforcement action. The commission shall inform the committee of its decision.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.17 [Effective 3/23/2015] Finding of persistent noncompliance.

(A) Based upon the number and type of compliance failures committed by a person, the underground technical committee may find, as part of the committee's review under section 4913.15 of the Revised Code, that the person is a persistent noncomplier.

(B) The committee shall report a finding made under division (A) of this section to the staff of the public utilities commission.

(C) There shall be a majority vote of the full committee, with at least one of the commercial-excavator stakeholders voting with the majority, for the committee to make a finding under division (A) of this section.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.19 [Effective 3/23/2015] Request for administrative hearing.

In lieu of making a recommendation of a fine or penalty or a no-enforcement determination, the underground technical committee may request an administrative hearing with the public utilities commission if the committee believes that any person responsible for a compliance failure should be subject to a fine or penalty exceeding those described in section 4913.151 of the Revised Code. As a result of the hearing, the commission shall impose a fine or penalty or take no enforcement action.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.20 [Effective 3/23/2015] Factors to be considered.

In determining a fine or penalty recommendation or imposition or whether no enforcement action should be taken under section 4913.15, 4913.16, 4913.171, 4913.19, or 4913.25 of the Revised Code, the underground technical committee, the public utilities commission, and the commission staff, as applicable, shall consider the following factors, as they apply:

(A) The person's demonstrated history of one-call, design, and excavation practices, including the following:

(1) The number of locate requests received and responded to;

(2) The number of locates completed;

(3) The number of one calls placed;

(4) The number of excavations completed;

(5) The number of design or development projects.

(B) The nature, circumstances, and gravity of the compliance failure, including the amount of damage involved in relation to the compliance failure, and whether it resulted in death, serious injury, dismemberment, or a significant threat to public safety;

(C) The organizational size of the responsible person;

(D) The prospective effect of a fine on the person's ability to pay business obligations and otherwise conduct business;

(E) The history or number of compliance failures by the person;

(F) The good faith effort on the person's part in attempting to achieve compliance after the compliance failure was identified.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.21 [Effective 3/23/2015] Imposition of recommendations.

Except as provided in sections 4913.171 and 4913.19 of the Revised Code, the public utilities commission shall impose every recommendation made under section 4913.15 or 4913.16 of the Revised Code by the underground technical committee.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.22 [Effective 3/23/2015] Payment of fine; compliance with penalty.

A person subject to a fine imposed under section 4913.171, 4913.19, or 4913.21 of the Revised Code or division (C)(2) of section 4913.16 of the Revised Code shall pay the fine not later than sixty days after the fine or penalty is imposed. A person subject to a penalty imposed under any of those sections or that division shall begin compliance with the penalty not later than thirty days after the penalty is imposed.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.23 [Effective 3/23/2015] Notice.

The public utilities commission shall, by letter, promptly notify the person that requested the inquiry and the person responsible for the compliance failure of any fine or penalty imposed under section 4913.171, 4913.19, or 4913.21 of the Revised Code or division (C)(2) of section 4913.16 of the Revised Code, or of a no-enforcement determination under section 4913.15 or 4913.19 of the Revised Code or division (A)(1) or (C)(1) of section 4913.16 of the Revised Code. The notice shall include all of the following, as applicable:

(A) The date of the compliance failure;

(B) The citation to the statute that was not complied with;

(C) A brief description of the compliance failure;

(D) The fine or penalty to be imposed, if any;

(E) Instructions on how to remit payment of a fine or to comply with a penalty;

(F) Instructions on how the person may file for reconsideration under section 4913.25 of the Revised Code and how to make a timely filing;

(G) A statement that failure to file for reconsideration under section 4913.25 of the Revised Code will make any findings final and enforceable.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.25 [Effective 3/23/2015] Application for reconsideration.

(A) If either the person that requested the inquiry or the person responsible for the compliance failure disagrees with either a finding or a no-enforcement determination made by the underground technical committee under section 4913.15, 4913.16, 4913.17, or 4913.19 of the Revised Code, either person may, not later than thirty days after receiving notice under section 4913.23 of the Revised Code, file a written application with the public utilities commission for reconsideration of the committee's finding. The application for reconsideration must state with particularity the grounds for reconsideration.

(B) Upon the filing of an application for reconsideration under this section, the commission shall formally review the finding of the committee.

(C) The commission may hold a hearing on the application for reconsideration.

(D) The commission shall affirm, reject, or modify the finding of the committee and shall impose any fine or penalty authorized under this chapter or take no enforcement action. The person responsible for the compliance failure shall pay any fine not later than sixty days after the fine is imposed by the commission. A person subject to a penalty shall begin compliance with the penalty not later than thirty days after the penalty is imposed by the commission.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.171 [Effective 3/23/2015] Imposition of fine on persistent noncomplier.

If the underground technical committee reports that a person responsible for a compliance failure has been found to be a persistent noncomplier under section 4913.17 of the Revised Code, the public utilities commission may impose a fine on the person not exceeding ten thousand dollars. A penalty recommended by the committee under section 4913.15 or 4913.16 of the Revised Code may also be imposed by the commission.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.251 [Effective 3/23/2015] Reconsideration order; appeal.

A reconsideration order issued under section 4913.25 of the Revised Code is subject to the rehearing and appeal process under Chapter 4903. of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.252 [Effective 3/23/2015] Hearings.

All hearings conducted by the public utilities commission under this chapter and under the process described in section 4913.251 of the Revised Code shall be conducted in a manner consistent with Chapter 4903. of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.26 [Effective 3/23/2015] Confidentiality.

Any documentation obtained pursuant to an inquiry conducted under section 4913.09 of the Revised Code, communications described in section 4913.152 of the Revised Code, or an administrative hearing conducted under section 4913.19 of the Revised Code shall be treated as confidential until a formal proceeding is commenced under section 4913.25 of the Revised Code, at which time the parties to the proceeding shall be bound by the rules of the public utilities commission governing discovery in matters pending before it.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.27 [Effective 3/23/2015] Disposition of fines.

Except for safety registrations and fines collected under section 4913.03 of the Revised Code, the public utilities commission shall deposit all fines collected under this chapter into the underground facilities protection fund created under section 4913.29 of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.29 [Effective 3/23/2015] Underground facilities protection fund.

There is hereby created in the state treasury the underground facilities protection fund. The fund shall consist of all fines collected under this chapter, except for safety registrations and fines collected under section 4913.03 of the Revised Code. The fund shall retain the interest earned. The amounts in the fund shall be used solely to fund grants under section 4913.31 of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.30 [Effective 3/23/2015] Underground facilities protection administrative fund.

There is hereby created in the state treasury the underground facilities protection administrative fund to be administered by the public utilities commission. The fund shall consist of all safety registrations and fines collected under section 4913.03 of the Revised Code. The fund shall retain the interest earned. The amounts in the fund shall be used for the operation of the underground technical committee, created under section 3781.34 of the Revised Code, and the commission in the performance of its duties under this chapter.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.31 [Effective 3/23/2015] Underground utility damage prevention grant program.

(A) The public utilities commission may administer an underground utility damage prevention grant program to provide grants for any of the following purposes:

(1) Public awareness programs established by a protection service;

(2) Training and education programs for excavators, operators, designers, persons who locate underground utility facilities, or other persons;

(3) Programs providing incentives for excavators, operators, persons who locate underground utility facilities, or other persons to reduce the number and severity of compliance failures.

(B) The commission shall determine the appropriate amount of any grant issued under this section.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.43 [Effective 3/23/2015] Annual report.

The public utilities commission shall submit to the general assembly an annual report of the previous year's activities under this chapter. Each report shall be submitted on or before April 1. Each report shall be made publicly available on the commission's web site.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.45 [Effective 3/23/2015] Rules to carry out chapter.

(A) The public utilities commission shall, in consultation with the underground technical committee, adopt rules under section 111.15 of the Revised Code to carry out this chapter. The rules shall include all of the following:

(1) Guidelines for consistent application of fines and penalties under this chapter;

(2) Tracking compliance of persons on whom fines or penalties have been imposed under this chapter;

(3) The required contents of the underground utility damage prevention grant program established under section 4913.31 of the Revised Code;

(4) The gathering, review, and acceptance of applications for a grant under section 4913.31 of the Revised Code;

(5) The dispensation and tracking of money from the underground facilities protection fund;

(6) The committee's duties, including rules that establish the committee's operation, meeting schedule, and voting procedures;

(7) The contents of the annual report required under section 4913.43 of the Revised Code;

(8) The process related to collecting the registration under section 4913.03 of the Revised Code.

(B) The commission may adopt rules establishing the following:

(1) Procedures for conducting inquiries under section 4913.09 of the Revised Code;

(2) Any other duties for the underground technical committee pursuant to section 3781.36 of the Revised Code.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.47 [Effective 3/23/2015] Multiple fines for same failure.

Notwithstanding any provision of the Revised Code to the contrary, if a person is subject to more than one fine for the same compliance failure, and one fine is imposed under this chapter and one or more other fines are imposed under federal law, rules, or regulations, the person shall not be required to pay the fine imposed under this chapter.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.50 [Effective 3/23/2015] Civil actions.

Any proceeding held under this chapter, any no-enforcement determination under this chapter, and any fine or penalty imposed under this chapter shall neither prevent nor preempt the right of any party to obtain civil damages for personal injury or property damage in a private cause of action. No finding, determination, or recommendation of the underground technical committee, no decision of the public utilities commission under this chapter, and no no-enforcement determination under this chapter shall be determinative of civil liability in a private cause of action for personal injury or property damage.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.

4913.52 [Effective 3/23/2015] Permittee for excavation.

A person with a permit for excavation from the state or a local governmental unit is subject to this chapter. This chapter does not affect or impair local ordinances, charters, or other provisions of law requiring permits to be obtained before excavating.

Added by 130th General Assembly File No. TBD, SB 378, §1, eff. 3/23/2015.